Dahlia Lithwick has an incredibly powerful and well-written critique in Slate (here) of Eric Holder's decision to appoint John Durham to probe CIA interrogators' misconduct -- but not the attorneys and policymakers who established the torture regime in the first place. This piece is one of the best that I've read on the torture issue, the rule of law, and a proper approach to confronting the past. Here's an excerpt:
To suggest, as Holder did yesterday, that he would immunize from prosecution "anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees" is to suggest that the low-level CIA operatives and contractors who acted badly on the ground are legally culpable while those who gave bad legal guidance are not. In other words, we are now protecting the good-faith torturers.
That isn't just wrong, it's outrageous. It ratifies the most toxic aspect of the whole legal war on terror: that anything becomes permissible if it's served up with a side of memo. Paper your misconduct with footnotes and justifications—even after the fact—and you can do as you please. Prosecution of those who strayed beyond the new rules, without considering the culpability of those who strayed in creating the new rules, would mean that in America, a law degree amounts to a defense.
Rep Jerry Nadler, D-N.Y., put it this way earlier this month when he warned that it makes no sense to prosecute the guy who used 8 ounces of water to water-board but not the lawyer who said it was OK to water-board someone with 3 ounces of water. We must either look into both sides of the post-9/11 legal breakdown or neither.
